# 2 57 REKHABEN VIRENDRA KAP ADJA v. STATE OF GUJARAT &ORS

- **Citation:** [1979] 2 S.C.R. 257
- **Court:** Supreme Court of India
- **Decided:** 1978-11-07
- **Case number:** Criminal Appeal No. 105 of 1978
- **Bench:** P. S. Kailasam, D. A. Desai, A. D. Koshal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-57-rekhaben-virendra-kap-adja-v-state-of-gujarat-ors-7508
- **Pages:** 8

## Headnote

..-
Coruervation of Foreign Exchange & Prevention of Smuggling Activities Act,
1 •
1974-S. 3-Grounds of detention stated detenu "likely to engage in transporting
smuggled goods"-Validity of-Reasonable nexus between prejudicial activities
.nnd purpose of detention-Tests for determination of.
The appellant was detained under the Maintenance of Internal Security Act,
1971 in September, 1974 but was released in December, 1974. In February~
1977 he was detained under s. 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, on the ground that he was
"'likely to engage in transporting smuggled goods".
One of the grounds of
detention stated : "you were an associate of a noto:-ious smuggler, ti1at you
were engaged in piloting smuggled goods loaded in trucks from the place of
landing .... "
In support of the Ubove, two instances were mentioned : one
relating to an incident on 6th August, 1974 and another on 25th August,
1974.
In the appe1Iant's writ petition the High Court observed ( 1) that although
some of the activities attributed to the detenu related to August 1974, the .fact
-that the detenu was in illegal employment of a notorious smuggler under detention clearly indicated that there was connection between him and the smuggler
·and (2) that a resasonable nexus between the prejudicial activities and the pur-
,pose of detention could not be said to have been snapped by the time lag render-.
ing the impugned order of detention as one without genuine satisfaction of the
detaining authority.
In appeal tq this Court it \Vas contended on behalf of the appellant that
the order of detention was bad, in that it disclosed that the satisfaction arrived
at by the detaining authority was mechanical and without application of his
mind.
Allowing the appeal,
HELD : ( 1) It is clear from the record that the instances alleged do not
relate to any incident after 1974 but only relate· to the activities of the detenu
in 1973 and 1974.
Even though information about the activities of the detenu
·during the year 1974 came to light in October and November, 1976, a fresh
-order of detention under the Act \Vas not passed till February, 1977. If the
authorities were in possession of any activities of the detenu after his release in
December, 1974 action would have been taken. It is only the statements that
were recorded in October and November 1976 which led the authorities to pass
a fresh order of detention in February, 1977. From the statements recorded
in October 3!nd November, 1976 no incidents are shown to have taken place
after 1974. [262B; 263C-D]
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
(2) Whether the time lag between August 1974 and February 1977 is enoughto snap the reasonable nexus between the prejudicial activities and the purpose
of detention would depend upon the facts of the case. If the detaining authority
had come to the conclusion, taking into account the past activities of the detenu,
that he was likely to continue to indulge in his unlawful activities in future
there would be no justification for this Court to interfere. It is quite likely
that persoru who are totally involved in such activities as smuggling can cause a
reasonable apprehension in the mind of the detaining authority that they are
likely to continue in their unlawful activities.
But in the instant case the·
detaining authority passing the order has not stated that he \vas satisfied that
the detenu was likely to engage in transporting smuggled goods. What he has.
stated was that the detenu "engages" or is "likely to engage" in transporting
smuggled goods.
There was no material before the detaining authority for
coming to the conclusion that the detenu was "engaging" himself in unlawful
activities. [263F; 264A-CJ

## Text

2 57
REKHABEN VIRENDRA KAP ADJA
v.
STATE OF GUJARAT &ORS.
'
November 7, 1978
[P. S. KAILASAM, D. A. DESAI AND A. D. KOSHAL, JJ.]
..-
Coruervation of Foreign Exchange & Prevention of Smuggling Activities Act,
1 •
1974-S. 3-Grounds of detention stated detenu "likely to engage in transporting
smuggled goods"-Validity of-Reasonable nexus between prejudicial activities
.nnd purpose of detention-Tests for determination of.
The appellant was detained under the Maintenance of Internal Security Act,
1971 in September, 1974 but was released in December, 1974. In February~
1977 he was detained under s. 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, on the ground that he was
"'likely to engage in transporting smuggled goods".
One of the grounds of
detention stated : "you were an associate of a noto:-ious smuggler, ti1at you
were engaged in piloting smuggled goods loaded in trucks from the place of
landing .... "
In support of the Ubove, two instances were mentioned : one
relating to an incident on 6th August, 1974 and another on 25th August,
1974.
In the appe1Iant's writ petition the High Court observed ( 1) that although
some of the activities attributed to the detenu related to August 1974, the .fact
-that the detenu was in illegal employment of a notorious smuggler under detention clearly indicated that there was connection between him and the smuggler
·and (2) that a resasonable nexus between the prejudicial activities and the pur-
,pose of detention could not be said to have been snapped by the time lag render-.
ing the impugned order of detention as one without genuine satisfaction of the
detaining authority.
In appeal tq this Court it \Vas contended on behalf of the appellant that
the order of detention was bad, in that it disclosed that the satisfaction arrived
at by the detaining authority was mechanical and without application of his
mind.
Allowing the appeal,
HELD : ( 1) It is clear from the record that the instances alleged do not
relate to any incident after 1974 but only relate· to the activities of the detenu
in 1973 and 1974.
Even though information about the activities of the detenu
·during the year 1974 came to light in October and November, 1976, a fresh
-order of detention under the Act \Vas not passed till February, 1977. If the
authorities were in possession of any activities of the detenu after his release in
December, 1974 action would have been taken. It is only the statements that
were recorded in October and November 1976 which led the authorities to pass
a fresh order of detention in February, 1977. From the statements recorded
in October 3!nd November, 1976 no incidents are shown to have taken place
after 1974. [262B; 263C-D]
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258
SUPREME COURT REPORTS
[1979] 2 S.C.R.
(2) Whether the time lag between August 1974 and February 1977 is enoughto snap the reasonable nexus between the prejudicial activities and the purpose
of detention would depend upon the facts of the case. If the detaining authority
had come to the conclusion, taking into account the past activities of the detenu,
that he was likely to continue to indulge in his unlawful activities in future
there would be no justification for this Court to interfere. It is quite likely
that persoru who are totally involved in such activities as smuggling can cause a
reasonable apprehension in the mind of the detaining authority that they are
likely to continue in their unlawful activities.
But in the instant case the·
detaining authority passing the order has not stated that he \vas satisfied that
the detenu was likely to engage in transporting smuggled goods. What he has.
stated was that the detenu "engages" or is "likely to engage" in transporting
smuggled goods.
There was no material before the detaining authority for
coming to the conclusion that the detenu was "engaging" himself in unlawful
activities. [263F; 264A-CJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 105 of
1978 with W.P. No. 833 of 1978.
(Appeal by special leave from the Judgment and Order dt. 27.9.77
D
of the Gujarat High Court in Criminal Sp!. Application No.
176 of
1977).
Ram Jethmalani and H. S. Parihar for the appellant in Cr. A. No.
105 and WP No. 833/78.
M. N. Phadke and B. D. Sharma and M. N. Shroff for respondent
E
No 1
F
Girish Chandra for re'spondent no. 4.
M. N. Shroff for respondents 1-3.
R. B Datar and Miss A. Subhashini for respondents 4-5.
The Judgment of the Court was delivered by
KAILASAM, J.-After hearing the arguments we allowed the appeal'
on 5-10-1978 and directed that the detenu be set at liberty forthwith
indicating that the detailed judgment would follow.
We now proceed'
to give reasons for our orde.r.
G
This appeal is preferred by the wife of one Virendra Ramniklal'
Kapadia,, a detenu, by special leave against the judgment of the High
Court of Gujarat at Ahmedabad dismis'sing the writ petition for the issue
of a writ of habeas corpus.
On 22nd September, 1974 the District Magistrate, Surat, directed
H
the detention of the detenu under section 3(1) (c) (i) and section 3(2)
of the Maintenance of Internal Security Act, 1971.
The cietenu was
supplied with the grounds of detention on 27th September, 1974.
The-
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REKHABEN v. GUJARAT (Kailasam, J.1
259
detention order passed under the Maintenance of Internal Security Act
was cancelled on 9th December, 1974 and the detenu was released. On
7th February, 1977 by an order under section 3 (!) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 197 4
(hereinafter referred to a·s COFEPOSAA) in the name of Governor, the
Under Secretary to Government, respondent 2, directed that it was nece•-
sary to detain the detenu with a view to preventing him from engaging
in transporting smuggled goods.
On the same day by another order
issued under section 5 of the COFEPOSAA the 2nd respondent directed
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that the detenu shall be detained in the Ahmedabad Central Prison.
A
declaration under section 12A, sub-section (12) was also passed on the.
same day by the 2nd respondent stating that it was necessary to detain ·it
the detenu for dealing effectively with emergency.
In pursuance of
the above orders the detenu has been detained in the Ahmedabad Central
prison after he surrendered on 4th July, 1977.
The grounds of detention were supplied to him on 6th July, 1977. On 2nd August, 1977
a declaration under section 9 of the COFEPOSAA was passed by the
4th respondent stating that he was satisfied that the detenu is likely to
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engage in transporting smuggled goods in the areas around Balashwar
and Sachin-Gabheni Road in the. State of Gujarat which are areas highly
vulnerable to smuggling as defined in section 9 of the COFEPOSAA.
The High Court negatived all the contentions raised on behalf
of
the dctenu and held that the order of de.tention was validly made.
Mr. Ram J ethmalani, the learned counsel for the appellant, raised
various contentions.
The first contention raised by him is that the
order passed under section 9 by the 4th respondent is bad because on
the face of it, it discloses that the satisfaction arrived at by him is mechanical and without application of his mind.
As the detention is continued beyond the period of one year only by virtue of the order made
under ccction 9 the dctenu is entitled to be set at liberty if the order is
found to be invalid.
On hearing the learned counsel for the appellant
and Mr. Phadke on behalf of the S>tate,. we are satisfied that the contention on behalf of the detenu has to be accepted.
Before dealing with
this point we would just mention the other grounds raised by the
learned counsel for the appellant.
Ii was submitted that the order passed under ·section 3 is invalid as
the. authority did not apply its mind.
The detenu was released
on
19th December, 1974 and from that date till 7th February, 1977 when
the order of detention was passed nothing has been disclosed to implicate the detenu in any fresh activity.
As the order was based on the
activities of the detenu in 1973 and 197 4 before the detenu was released,
the order of detention cannot be sustained.
It was next submitted that
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SUPREME COURT REPORTS
[ 1979] 2 s.c.R.
the detenu was not furnished important material which must have influenced the detaining authority.
Lastly, it was
submitted
that the
grounds given are vague and even after a careful reading of the gronnds,
it is n0t cleHr as to whether the grounds referred to the incidents that
took place in 1973 and 1974 only refer to activities subsequent to his
release in December, 1974. As we are upholding the challenge of the
learned counsel for the appellant on the validity of the order passed
under section 9(1) of the COFEPOSAA we refrain from cleoling with
any of the other contentions.
The order dated 2nd August, 1977 passed by B. B. Gujral, Addi.
Secretary to the Government of India, the 4th responde•1t under section
t
9( I) o!f th COFEPOSAA is marked as Anncxure E'.
It runs
as
follows
"Whereas Virendra Ramniklal Kapadia @
Kumar has
been detained on 4th July, 1977 in pursuance of Order No.
SB. IV /PSA,2876.87 (i) dated the 7th February, 1977 of the
D
Government of Gujarat with a view to preventing him from
engaging in transporting smuggled goods.
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A ND WHEREAS I, the undersigned, specially empowered
in this behalf by the Central Government, have carefully coru;idered the material bearing on the matter in my possession;
NOW, THEREFORE, I, the undersigned, specially empowered by the Central Government, hereby declare that I
am satisfied that the aforesaid Virendra RamniUu! Kapadia
@ Kumar engages and is likely to engage in trailsporting
smuggled goods in the areas around Baleshwar and SachinGabheni Road in the State of Gujarat, which are areas highly
vulnerable to smuggling as defined in explanation to section
9 ( 1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974."
In paragraph 3 respondent 4 declared that he is sati&fied that the detenu
engages and is likely to engage in transporting smuggled goods in vulnerable areas as defined in explanation section 9 ( 1) of the COFEPOSAA.
It was submitted that there is no material on record on which the
4th
respondent could have been satisfied that the dctcnu "engages and is
likely to engage in transporting smuggled goods".
The impugned order
refers to the order of detention dated 7th February, 1977 of the GovernH
ment of Gujarat.
The order of 7th February, 1977 refers to the coasideration of the Government of Gujarat as to whether the detention is
necessary for dealing effectively with the emergency referred to in sub-
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REKHABEN v. GUJARAT (Kailasam, .T.)
261
section (2) of section 12-A of the Act and states that on a consideration
of the materials the Government of Gujarat was satisfied on the basis of
information and material in its possession that it was necessary to detain
the said person for dealing effectively with the said emergency.
In
exercise of its power·s under sub-section (12) of section 12-A the Government dedarec' that it is necessary to detain the detenu for dealing effectively with the said emergency. On the same date the grounds on which
the detention was ordered were sent to the detenu through the Supe.rintendent of the Jail.
The ground that is alleged against the detenu in
paragraph 1 of the order is as follows :-
"!. As per the intelligence gathered by the Customs Officers, you were an a·ssociate of a notorious smuggler Mohmed
Kutchi of Surat; that you were engaged in piloting smuggled
goods loaded in trucks from the place of landing to the place
of storage." (underlying ours).
Two incidents are given : one relating to an incident on 6th August,
1974 and the other to an incident on 25 August, 1974. It is further
stated that the Customs Officers contacted one Kantilal Amratlal
Thakkar, who was working as accountant of Mohmed Kutchi. Kantilal Amratlal Thakkar in his statement on 7th November, 1976 stated
that the detenu was under the employment of the af•.>resaid Mohmed
Kutchi and was getting a salary of Rs. 5,000 p.m. for :llTanging landing of contraband goods. Kantilal further disclosed that in the year
1973 the cletenu had accompanied one Mohmed Bilal with foreign
currency. Re[erence is also made to the statements rccrded from one
Mohmed Bilal Haji Usmangani on 8th November, 1976
and
9th
November, 1976 before the Customs Officers wherein it was stated
that the detenu was one of the trusted men of tl1e aforesaid Mohmed
Kutchi and always remained with him and used to help Mohmed
Kutchi in managing his smuggling activities. The statement also referred to the detenu helping his uncle Vinod Sakarlal Kapadia in delivery
of smuggled fabrics. The statement of one Ramchandra
Schedeva
Rajbher is also referred to. According to the statement dated
I !th
October, 1976 it was stated that the detenu remained present along
with one Dmer Ibrahim Billimoria and his gang at Kadodra/Kamraj
near poultry farm where trucks loaded with camouflaged
consumments were being fed with smuggled cargo.
A
reading of the$e
grounds makes it clear that the incidents referred to relate to the years
1973 and 197 4 and that due to examination of three persons Kant'lal
Amratlal Thakkar, Mohmed Bilal Haji Usmangani and Ramchandra
Sahadeva Rajbher, fuller particulars regarding tl10 activities of
the
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
detenue came to be known Prima facie it appears that the information
which the Customs authorities received related to the activities of the
detenu in 1973 and 1974. Mr. Phadke, the learned counsel appearing
on behalf of the State, submitted that the statement shows that the
activities of the detenu after 1974 were also included in the grounds
furnished for
detention.
In order to satisfy
ourselves
as
to
whether the statements related to incidents after 197 4,
we
l'erused
the statements made by alJ the three persons referred 10.
It is very
clear that the statements do not relate to any incidents after 1974 but
only to the activities of the detenu in 1973 and 1974.
In the affidavit
filed by the 4th respondent,, Additional Secretary to the Government of
India, it is stated in paragraph 5 of his affidavit that he, considered the
detention order, grounds of detention relating to the detenu as welJ as
the report in respect of the detention order by the State Government under section 3 ( 3) and wa·s personally satisfied that the detenu
Vircndra Ramniklal Kapadia @ Kumar engages anJ is likely to engage
in tra.D.sporting smuggled goods* Mr. P. M. Shah Under Secretary to
the Government of Gujarat, in paragraph IO of his affidavit stated that
"fresh material showing the involvement of the dctenu in the activity of
transporting smuggled goods was collected by the Customs authorities
and therefore it was open to the State Government to pass a fresh order
of detention.
Further, he stated "As pointed out in the grounds material indicating the involvement of the detenu in the incidents of 6.8.74
and 25-8-74 and his close association with Shr; Mohmed Kutchi,*
a notorious smuggler, came to be known in October, November and
December, 1976 x x x x I say that the material on the basis
of
which the detenu was earlier detained was scanty and no ne.w material
indicating involvement of the detenu as alleged against him came to the
light till October, 1976''.
The case for the State appears to be that they
regarded the material on the basis of which the detenu was earlier detained was scanty and fuller particulars came to light in October, 1976
indicating involvement of the detenu in the incidents of 6th August,
1974 and 25th August, 1974.
This would indicate that for the fresh
order of detention the basis was availability of fuller details regarding incidents on which the earlier detention was ordered. It is seen that the
High Court also proceeded on the basis that further information obtained
in October. November 1976 related to the incidents in the years 1973
and 1974. The High Court observed, "It is no doubt true that some of
the activities attributed to the detenu were of August, 1974. However,
the ground that the detenu was in regular employment of one Mohmed
Kutchi, who is a notorious smuggler and who is also under detention,
*Emphasis Sppluied
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REKHABEN v. GUJARAT (Kailasam, !.)
2 63
and which fact has been disclosed from the statement of one Kantilal
Amratlal Thakkar recorded on November 7, 1976, clearly indicates the
connection of the detenu with the said notorious smuggler. The other
statements, which have brought home the involvement of the detenu
with the aforesaid Mohmed Kutchi and which also attribute the prejudicial activity to the detenu, were recorded somewhere in October
and
November, 1976." We are unable to read the above passage as mem1ing
that reliance was )placed on fresh incidents relating to the detenu after
December. 1974.
The detenu was detained on 22nd September, 1974
and was released on 9th December, 1974.
Further information about
the activities of the detenu during the period 1974 obviously before his
arrest on 22nd September, 197 4 came to light in October and November,
1976.
But it is seen that the fresh order of detention under the
COFEPOSAA was net passed till 7th February, 1977.
If the authorities were in possession of any activities of the detenu after his release on
9th December, 1974 action would have been taken. It is only the
statements that were recorded in October and November 1976 which led
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the authorities to pass the fresh order of detention on 7th February,
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1977. We have seen from the statements recorded in October and
November. 1976 that no incident that took place after 1974 has been
referred to.
The High Court observed that it cannot be urged that reasonable
nexus between the prejudicial activity and the purpose of detention has
been snapped by the time-lag rendering the impugned order of detention
as one without genuine satisfaction of the detaining authority. Whether
the time lag between August, 197 4 and February, 1977 is enough to
snap the reasonable n~xus between the prejudicial activity and the pnrpcse of detention would depend upon the facts of the case. It may be
that a /person in the position of a detenu who wa~ a driver of a wellknown smuggler on a pay of Rs. 5,000 p.m. and who was taking part in
clearing the smuggled goods may satisfy the authority that he is ;ikely
to continue in his activities in the future and as such would justify his
detention. In Gore v. State of West Bengal(') this Court after referring to the earlier decisions held that the test of proximity is not a rigid
or mechanical test to be blindly applied by merely counting the number
of months between the offending acts and the order of detention. The
question is whether the past activities of the detenu are such that the
detaining authority can reasonably come to the conclusion that the detenu
is likely to continue in his unlawful activities.
If the detaining authority
in this case had came to the conclusion taking into account the past
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(!) [1975] 2 S.C.R. 996.
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
activities of the detenu that he i's likely to continue to indulge in such
activities in future there would be no justification for this Court to inter-.
fere.
It is quite likely that persons who are deeply involved in such
activities as smuggling can cause a reasonable apprehension in i:he minds
of the detaining authority that they are likely to continue in their unlawful activities.
In this case, the 4th respondent who passed an order
under section 9 ( 1) has not stated that he is satisfied that the detenu is
likely to engage in transporting all smuggled goods. What he ha; stated
i• that the detenn "engages and is likely to engage in transporting smuggled goods".
There was no material before the 4th respond~nt for
coming to the conclusion that the deterru "engag"es" in transporting smuggled goods.
To this extent we have to accept the contention of the
learned counsel for the ajppellant that there is no material for coming
to the conclusion that the detenu was "engaging" himself in the unlawful
activities.
The detenu has been under detention from 4th July, 1977
and the period of detention permissible under section 3 is only one
year.
Section 9 (1) enables the authority to make a declaration which
would have the effect of extending the period of detention to two years
from the date of detention by virtue of amendment to section 10 by
Amending Act 20 of 197 6.
As we have found that the order under
section 9(1) has not been validly made and as the detenu has been in
detention for more than one year his continuance in detention is not
gustainable.
In the circumstances, we allow the petition.
P. B. R.
Appeal allowed.
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